Genocide, War Crimes, and Gaza

The latest episode The Ezra Klein Show, “When Is It Genocide?” is characteristically insightful, if ultimately unsatisfying. The conversation is 1 hour, 42 minutes in length and and the transcript is sufficiently long to make excerpting and discussion of even the major points prohibitively time-consuming.

Here’s an AI-generated summary, which I’ve verified for accuracy:

Opening framing: U.S. empathy gap

• Ezra Klein recalls how, after Oct. 7, 2023, President Biden tried to convey Israel’s trauma by comparing it to “fifteen 9/11s” for a country the size of Israel.
• Nearly two years later, Klein says, Gaza’s death toll is estimated at over 61,000 people, in a population just over 2 million. For the U.S., “that would be… like 2,500 Sept. 11s.”
• He notes skepticism about casualty numbers from the Hamas-run health ministry, but cites The Lancet’s analysis finding “the true number… was far higher.”

Scale of destruction and famine

• Gaza, “about the size of Detroit,” has had over 100,000 tons of explosives dropped on it since Oct. 7 — “more tonnage than was dropped on Dresden and Hamburg… and London combined during World War II.”
• 70 % of all structures — “homes, hospitals, schools” — are “severely damaged or destroyed.”
• Israel has restricted food flows; in March 2024, it blockaded aid for 11 weeks, dismantled the UN’s distribution network, and replaced it with “four sites run by inexperienced American contractors.”
• “Famine is spreading across Gaza. People are dying of hunger… This is hunger as policy. Hunger as a weapon of war. This is a siege.”

Questioning the siege’s purpose

• Is it to destroy Hamas? A group of ex-Israeli security chiefs says Hamas “no longer poses a strategic threat to Israel.”
• Is it to free hostages? Klein cites the main hostage families’ group: “Netanyahu is leading Israel and the hostages to doom.”
• “What is this? This is a war crime… But more and more people are using another word… ‘genocide.’”

Klein’s shift on the term “genocide”

• In December 2023, when South Africa accused Israel at the ICJ, Klein “thought they were wrong… Israel had been attacked. Its defense was legitimate.”
• Over the next year, “a slew of organizations and scholars” — Amnesty, B’Tselem, HRW, Holocaust scholars — came to believe it had “become genocidal.”
• His hesitancy: public imagination ties “genocide” to “the Holocaust,” but “the legal definition… encompasses much more than that.”

Introducing Philippe Sands

• Sands is a lawyer who has tried genocide cases, teaches at Harvard Law and UCL, and wrote East West Street about the concept’s creation.

Raphael Lemkin’s path to “genocide”

• Born in what is now Belarus; influenced by pogrom accounts and mass-killing stories from his mother.
• Shocked by a 1921 case in Berlin: Armenian survivor Soghomon Tehlirian kills a Turkish official linked to the Armenian massacres. A professor tells Lemkin that “under international law… you are the property of your ruler… If they want to kill you, they’re perfectly free to do it.”
• Lemkin began seeking an international legal concept to protect groups from their own governments.

Lemkin’s broad conception

• Identified patterns before mass killing: restrictions on jobs, education, housing, language; forced relocation; ghettoization; eventual extermination.
• For Lemkin, “the entire process is a genocidal process… you don’t wait until… killing.”

Tension with Hersch Lauterpacht

• Lauterpacht focused on protecting individuals (“crimes against humanity”); feared protecting “groups” could replace “tyranny of the state… with the tyranny of the groups.”
• Lemkin countered: people are attacked “because they’re a member of a group that is hated” — so the law must protect groups.

From Nuremberg to the Genocide Convention

• Nuremberg in 1945 invented new crimes: war crimes, crimes against humanity, crime of aggression.
• “Genocide” appeared in indictments but not the statute; was omitted from the final judgment — Lemkin called this “the blackest day of his life.”
• Lemkin’s lobbying led to the 1948 Genocide Convention, defining genocide as acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” through killing, serious harm, inflicting destructive conditions, preventing births, or transferring children.

Narrowing of the legal standard

• Sands: Lemkin’s original bar was “much lower” — no requirement of special intent, broader group coverage.
• Courts in the 1990s–2000s pushed the bar “even higher,” requiring that genocidal intent be the only reasonable inference from conduct.
• This creates a “gap” between public and legal understandings, fueling political disappointment when atrocities aren’t legally genocide.

Why proving genocide is hard

• Leaders don’t write down extermination plans; intent must be inferred from patterns.
• The ICJ’s standard means that if there’s any plausible non-genocidal intent (e.g., self-defense), proving genocide is “very difficult.” Sands calls this too strict, noting humans often act from “multiple different intents.”

Applying to Gaza: South Africa’s case

• Argument: genocidal rhetoric + famine as a weapon leave “no military justification” — “the only reasonable inference… is an intention to destroy a group.”
• Klein notes that Hamas “has been completely degraded… And yet they’re starving the people of Gaza” — shifting even skeptics toward the genocide label.
• Sands: “Lemkin… would certainly characterize what is happening now in Gaza as genocidal.”

Destruction of Gaza’s viability

• Blatman & Goldberg (Haaretz): “Gaza, as a human, national-collective entity, no longer exists. This is precisely what genocide looks like.”
• Only 1.5 % of arable land remains; famine risk is immense.
• Sands: such factors match Lemkin’s 1944 conception, though “ethnic cleansing… has been ruled not to be genocidal” under current law.

Genocidal rhetoric

• Netanyahu has invoked biblical commands to annihilate Amalek; Herzog has said “it is an entire nation… responsible” and dismissed civilian/non-combatant distinctions.
• Many leaders equate Hamas with all Gazans.
• Sands: distinguish between “genocidal rhetoric” and legally provable “genocidal intent” — courts need to link statements to concrete acts.

Cultural stakes

• Klein: the goal for some is “to attach to Israel… the charge of genocide, and make it stick in cultural memory… to change the meaning of the Jewish state.”

The danger of indifference

• Klein cites polls showing 79 % of Israeli Jews “not troubled at all” by Gaza’s famine — likening this to Hannah Arendt’s “indifference… as the soil… for genocide.”
• Sands: “It is literally beyond my comprehension… it’s always about dehumanization… Therefore, we are free to treat them in this way.”

Longer historical arc

• Palestinians see Oct. 7 not as a starting point but an “eruption… inside a long process of their erasure,” including blockade and West Bank settlement expansion.
• Sands: recent recognition of Palestinian statehood by Spain, Ireland, France, and soon the UK could become a “game changer” in international law and politics, isolating Israel if policies persist.

Israel’s possible legal defense

• Primary claim: actions are self-defense, not extermination; war would end if Hamas surrendered and released hostages.
• Sands: “Under international law, this kind of treatment is not justifiable… whether you call it war crimes… or genocide.”
• He co-authored an Oct. 2023 statement affirming Israel’s right to self-defense but warning that it “is not unlimited” and must comply with international law.

Closing cautions

• Sands: “The longer this goes on, the more difficult it is… to resist the argument that this meets the definition of genocide under international law.”
• Klein: beyond labels, “it is utterly appalling and unjustifiable, and it should not be happening.

Ultimately, it seems highly doubtful to me that Israel or the Netanyahu government will be found to have committed genocide here. While I agree with Klein and Sands that several high Israeli officials, including President Herzog, have used “genocidal rhetoric,” there are clearly explanations other than genocidal intent. Indeed, since humans rarely do anything without mixed motivation, that’s a near-impossible bar to clear.

It’s far more likely that courts will find the government guilty of crimes against humanity, violations of the laws of armed conflict, or even ethnic cleansing. While those all potentially add up to “genocide” in the philosophical literature, they don’t clear the high legal bar enacted in 1948 and litigated in many cases in the decades since.

That no government has ever been found guilty of genocide is an indicator, perhaps, that there is little utility in the question itself. It’s hard enough to hold them accountable for lesser crimes without trying to clear a near-insurmountable bar. It may be that, as Klein suggests, the only real utility is in how it sits in the public and historical consciousness.

It also seems clear to me that, for not only hard-right Israeli politicians but the vast majority of Israeli Jews, the distinction between the Gazans, or even the Palestinian writ large, and Hamas is largely non-existent. A recent episode of The Daily, “What Many Israelis Don’t Want to See,” provides a human dimension to the polling data. In the minds of many, the children who are being killed or starved today are tomorrow’s terrorists, who will perpetrate the next October 7 attack.

And, of course, all of the laws in question were made in the aftermath of the Second World War in the context of wars between state actors. International law is really not designed to deal with terrorist groups like Hamas that completely disregard the laws of armed conflict and hide among the civilian population. Mass killing is almost inevitable when fighting such a foe. The use of seige warfare and mass starvation, however, is much harder to justify.